UPDATE: THE 9TH CIRCUIT HAS VACATED THE JUDGMENT IN THIS CASE, AND DECIDED TO REHEAR THE CASE EN BANC. THIS CASE WILL NOT BE RE-DECIDED UNTIL AFTER THE US SUPREME COURT HEARS THE CHICAGO HANDGUN BAN CASE.
Yesterday, the 9th Circuit Court of Appeals decided the appeal in the Nordyke case. This case was about the ability of Alameda County, CA to ban gun shows on county property. The court upheld the ban, but at the same time found that the 2nd Amendment right to keep and bear arms applies against state and local governments, by and through incorporation into the 14th Amendment!
Gun Show Ban Upheld
In upholding the banning of guns on county property, the court said that such a ban was “the only straightforward response to such a danger” posed by gun shows occurring on county property, and that such a ban is constitutional because it “does not directly impede the efficacy of self-defense or limit self-defense in the home. Rather, it regulates gun possession in public places that are county property.” I obviously disagree with the long since disproven idea that gun shows are dangerous, but that is not the focus of this article.
Second Amendment Incorporated
Incorporating the Second Amendment, the 9th Circuit stated the following:
[The right to keep and bear arms is] deeply rooted in this Nation’s history and tradition…. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.
This decision means that within the Ninth Circuit’s geographical bounds, the Second Amendment applies against state and local governments, just as it applies against the Federal government.
Overall, this is a victory in part and a defeat in part, but I see it as mainly a victory. It is a victory because a Court of Appeals has incorporated the Second Amendment into the Fourteenth Amendment, which will limit the ability of state and local governments to infringe the Second Amendment. It is a defeat because the court upheld the anti gun rights ordinance that was at issue. However it is important to note that this gun show ban applied only to the selling/possession of guns on county property. While I don’t like this restriction, it is a lot less onerous then, say, a ban on handguns in one’s private home. Having now incorporated the Second Amendment, I get the feeling that the 9th Circuit would have struck down such a hypothetical ban, in keeping with the Supreme Court’s ruling in D.C. v Heller.
Also note, that since the state of Illinois is in the Seventh Circuit, rather than the Ninth Circuit, this ruling does not directly effect the Chicago or Oak Park handgun ban. However when the Seventh Circuit reconsiders Second Amendment incorporation in light of D.C. v Heller, which will happen this summer, todays Ninth Circuit ruling may certainly be persuasive.
The full court opinion can be downloaded here. I also wrote a primer on the Nordyke case and Second Amendment incorporation in this article.
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